Elon Musk’s security clearance drama could change what is private and what is not

In the past several months security clearances have gone mainstream, perhaps more than ever. High profile clearance revocations have put a process that used to largely sit in the shadows into the public spotlight. 

The idea of who has a clearance and who doesn’t has traditionally been a private one. Those in the know don’t have to speculate too much on who does or doesn’t have access – certain buildings and jobs in the Washington, D.C. metro in particular have clear security clearance requirements – but clearance eligibility has largely been considered a private matter between the individual and the government. That’s a notion supported by the Privacy Act. 

A federal judge’s ruling this week may pull back the curtain, however: a federal judge ordered the Defense Counterintelligence and Security Agency (DCSA) to release some Privacy Act–protected details concerning Elon Musk’s security clearances, following a push by The New York Times that the agency release the details. The ruling cuts across national security, privacy law, and the public’s right to know, and it turns in no small part on Musk’s own public disclosures.

The ruling in brief

The court found that Musk’s public admissions regarding drug use, NASA’s imposition of random drug testing, and his contacts with foreign leaders erode the privacy interest that the Defense Counterintelligence and Security Agency has claimed in responding to The New York Times’ request that the agency release details about Musk’s clearances and access. The judgment notes: “His posts on X on these topics have collectively garnered over 2 million views. And it is undisputed that drug use and foreign contacts are two factors DCSA considers when determining whether to impose conditions or waivers on a security clearance grant.”

Because Musk himself has placed these subjects in the public domain, the court concluded that DCSA was unjustified in asserting that simple disclosure of whether a condition or waiver exists (or doesn’t) would subject him to “embarrassment or humiliation.” The court left room, however, for DCSA to make narrow redactions in camera (i.e. privately to the court) if any particular condition or waiver implicates Musk’s more sensitive privacy interests.

In other words: the existence of waivers or conditions may be disclosed; the details around those disclosures might still merit redaction if the government satisfies the court that a privacy harm exists.

Elon Musk: He’s Not Like Us

Speculation around Musk’s security clearances and how he’s able to maintain access despite the issues brought up in the court decision are nothing new. I’ve previously written about how – and why – the government might continue to give Musk access or allow his clearance to remain eligible. The entire security clearance process isn’t about the individual being given access, it’s about the government’s need to both protect classified information and to conduct the kind of cutting-edge research and national security innovation required. Waivers and conditions exist exactly for the Musks of the world. If you’re a billionaire with an idea the government thinks it needs, the process is designed to ensure the government is able to take advantage of that innovation. 

The government might need Musk’s SpaceX, but the court decision argues it doesn’t need to maintain Musk’s privacy rights when it comes to what access he’s been granted. 

On pages 16–17 of the opinion, the judge argues: Musk’s public statements “only enhance the public interest in disclosure.” DCSA itself concedes that one of the most obvious public interests is “the public’s ability to understand DCSA’s operations or activities.” The list of Musk’s security clearances, along with any possible conditions or waivers, could offer “meaningful insight into DCSA’s performance of that duty” of continuous vetting.

So the ruling treads a delicate path: yes to disclosure; yes to limited redactions; yes to balancing privacy and oversight - and rejecting the government's broad shield in this case.

Why it matters

Let’s step back for context. This decision isn’t just about Musk; it’s a notable moment in the law of oversight and security clearance accountability. The government often resists disclosing security clearance records under both FOIA (Freedom of Information Act) and the Privacy Act, especially when it claims that disclosure of even minimal information would invade someone’s privacy. But here, the court refused to accept those arguments at face value.

The ruling underscores that when public figures themselves place sensitive topics like drug use and foreign contacts into the public arena, they may weaken their claim to privacy in related records. 

That doesn’t mean all privacy protections evaporate, but it raises the bar for the government to explain why withholding is justified. It also creates more risks for current security clearance holders who may disclose information about topics that may be considered clearance red flags. Clearance holders already appreciate that what happens in Vegas may not stay there. The court ruling emphasizes that what you post online may chip away at your expectations of privacy surrounding your clearance status. 

Over the years, there have been public rumors, speculative reporting, and Musk’s own comments about his access and clearances. Musk has at times claimed to hold Top Secret clearances and has held government positions that would have required special access. 

His openness (or at least his willingness to speak publicly) about controlled substance use, especially in recent years, with admissions about occasional ketamine use, cannabis use, and NASA’s drug testing requirements, has stoked curiosity about how those admissions play into security evaluations.

These threads have hovered in the background; now they are central.

The Privacy Act and how it intersects with security clearances

I’ve long advised: the fact that you hold a security clearance isn’t a secret itself, but there are specific policies around the security clearance process that protect the individual investigated. 

There is a fundamental and good reason for that – the security clearance process can be intrusive, asking questions about criminal conduct, sexual behavior, cohabitants, and family members, that you may be remiss to disclose if you thought there was a possibility they could become public fodder. The Privacy Act (5 U.S.C. § 552a) is a statute that limits how federal agencies collect, use, and disclose information about individuals. It gives individuals rights to access, amend, and know how their records are used – including those sensitive security clearance records.

One of its fundamental principles is that an agency should not release records about an individual that are “about” them, without that person’s consent, unless a statutory exemption or exception applies. This is why DCSA has been denying press requests for information about Musk’s security clearance. Musk may be a celebrity (not like us), but he’s also a citizen, and he maintains his Privacy Act protection. 

In the context of security clearances, agencies often assert that disclosure (even minimal) would lead to an unwarranted invasion of privacy. They claim people might be embarrassed or that sensitive personal or national security interests would suffer. 

While the Privacy Act has long acted as a protection for clearance applicants, that protection is not absolute – at least when it comes to public figures. Courts have recognized that when an individual holds (or claims) a public or high-profile position, and particularly when national security or government functions are involved, the balance may tilt toward disclosure if a strong public interest exists.

So the Privacy Act provides a legal shield, but it is not absolute. It's often negotiated through the court’s weighing of individual privacy versus public interest in disclosure.

What to watch next

DCSA has until a court deadline to propose redactions. Will they justify redacting specific conditions or waiver language? The court already invited that possibility. The ruling covers “the list of clearances, including whether conditions or waivers exist” (or not). But what about classification levels, scope, or related adjudicative detail? The government may still argue some parts are more sensitive.

The precedential effect is the critical one here, and worth following as the case continues. If upheld, this decision might be invoked in future cases involving public figures, security clearances, or executive branch accountability. It may influence how aggressively agencies assert privacy interests, especially when the subject has already commented publicly on overlapping topics. If DCSA discloses Musk’s clearance details on the grounds that he has previously spoken about his clearance, the door cracks open for other individuals to have their eligibility and access scrutinized for something as simple as a social post. 

The obvious argument is few individuals could claim the same level of public awareness and interest as Musk, whose social media following is cited as among the reasons for disclosure. 

But he’s far from the only public figure with security clearance eligibility. And while public status is a part of the ruling, so is public disclosure – which is something far more security clearance holders and applicants would be affected by. 

The court has effectively told DCSA that Musk’s own public self-disclosures have eroded the shield of privacy he sought. It will be interesting to see what transpires next, and what that might mean for the notion of both privacy and accountability surrounding the security clearance process. The decision is ultimately most likely to be overruled by the higher court, but decisions like this chip at the executive branch’s authority and open up broader questions about how security clearances are treated – in private and public. 

Lindy Kyzer is a former Defense Department civilian and current vice president at ClearanceJobs.com. She also serves as vice-chair of the Security Policy Reform Council with the Intelligence and National Security Alliance.